REGISTRATION RIGHTS AGREEMENT
Among
Sinclair Broadcast Group, Inc.,
Chesapeake Television, Inc.
Chesapeake Television Licensee, Inc.
FSF-TV, Inc.,
KABB Licensee, Inc.,
KDNL Licensee, Inc.,
KSMO, Inc.,
KSMO Licensee, Inc.,
KUPN Licensee, Inc.,
SCI-Indiana Licensee, Inc.,
SCI-Sacramento Licensee, Inc.,
Sinclair Communications, Inc.,
Sinclair Radio of Albuquerque, Inc.,
Sinclair Radio of Albuquerque Licensee, Inc.,
Sinclair Radio of Buffalo, Inc.,
Sinclair Radio of Buffalo Licensee, Inc.,
Sinclair Radio of Greenville, Inc.,
Sinclair Radio of Greenville Licensee, Inc.,
Sinclair Radio of Los Angeles, Inc.,
Sinclair Radio of Los Angeles Licensee, Inc.,
Sinclair Radio of Memphis, Inc.,
Sinclair Radio of Memphis Licensee, Inc.,
Sinclair Radio of Nashville, Inc.,
Sinclair Radio of Nashville Licensee, Inc.,
Sinclair Radio of New Orleans, Inc.,
Sinclair Radio of New Orleans Licensee, Inc.,
Sinclair Radio of St. Louis, Inc.,
Sinclair Radio of St. Louis Licensee, Inc.,
Sinclair Radio of Wilkes-Barre, Inc.,
Sinclair Radio of Wilkes-Barre Licensee, Inc.,
Superior Communications of Kentucky, Inc.,
Superior Communications of Oklahoma, Inc.,
Superior KY License Corp.,
Superior OK License Corp.,
Tuscaloosa Broadcasting Inc.,
WCGV, Inc.,
WCGV Licensee, Inc.,
WDBB, Inc.,
WLFL, Inc.,
WLFL Licensee, Inc.,
WLOS Licensee, Inc.,
WPGH, Inc.,
WPGH Licensee, Inc.,
WSMH, Inc.,
WSMH Licensee, Inc.,
WSTR, Inc.,
WSTR Licensee, Inc.,
WSYX, Inc.,
WTTE, Channel 28, Inc.,
WTTE, Channel 28 Licensee, Inc.,
WTTO, Inc.,
WTTO Licensee, Inc.,
WTVZ, Inc.,
WTVZ Licensee, Inc.,
WYZZ, Inc.,
and
WYZZ Licensee, Inc.,
Smith Barney Inc.,
Chase Securities Inc.,
Salomon Brothers Inc.
and
Furman Selz
Dated as of July 2, 1997
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of July
2, 1997, by and among Sinclair Broadcast Group, Inc., a Maryland corporation
("Sinclair" or the "Company"), the Guarantors (as defined below), and Smith
Barney Inc., Chase Securities Inc., Salomon Brothers Inc and Furman Selz, as the
initial purchasers (the "Initial Purchasers") of the Company's 9% Senior
Subordinated Notes due 2007 (the "Notes"), which are guaranteed (the
"Guarantees") by the following subsidiaries of the Company: Chesapeake
Television, Inc., a Maryland corporation, Chesapeake Television Licensee, Inc.,
a Delaware corporation, FSF-TV, Inc., a North Carolina corporation, KABB
Licensee, Inc., a Delaware corporation, KDNL Licensee, Inc., a Delaware
corporation, KSMO, Inc., a Maryland corporation, KSMO Licensee, Inc., a Delaware
corporation, KUPN Licensee, Inc., a Maryland corporation, SCI-Indiana Licensee,
Inc., a Delaware corporation, SCI-Sacramento Licensee, Inc., a Delaware
corporation, Sinclair Communications, Inc., a Maryland corporation, Sinclair
Radio of Albuquerque, Inc., a Maryland corporation, Sinclair Radio of
Albuquerque Licensee, Inc., a Delaware corporation, Sinclair Radio of Buffalo,
Inc., a Maryland corporation, Sinclair Radio of Buffalo Licensee, Inc., a
Delaware corporation, Sinclair Radio of Greenville, Inc., a Maryland
corporation, Sinclair Radio of Greenville Licensee, Inc., a Delaware
corporation, Sinclair Radio of Los Angeles, Inc., a Maryland corporation,
Sinclair Radio of Los Angeles Licensee, Inc., a Delaware corporation, Sinclair
Radio of Memphis, Inc., a Maryland corporation, Sinclair Radio of Memphis
Licensee, Inc., a Delaware corporation, Sinclair Radio of Nashville, Inc., a
Maryland corporation, Sinclair Radio of Nashville Licensee, Inc., a Delaware
corporation, Sinclair Radio of New Orleans, Inc., a Maryland corporation,
Sinclair Radio of New Orleans Licensee, Inc., a Delaware corporation, Sinclair
Radio of St. Louis, Inc., a Maryland corporation, Sinclair Radio of St. Louis
Licensee, Inc., a Delaware corporation, Sinclair Radio of Wilkes-Barre, Inc., a
Maryland corporation, Sinclair Radio of Wilkes-Barre Licensee, Inc., a Delaware
corporation, Superior Communications of Kentucky, Inc., a Delaware corporation,
Superior Communications of Oklahoma, Inc., an Oklahoma corporation, Superior KY
License Corp., a Delaware corporation, Superior OK License Corp., a Delaware
corporation, Tuscaloosa Broadcasting, Inc., a Maryland corporation, WCGV, Inc.,
a Maryland corporation, WCGV Licensee, Inc., a Delaware corporation, WDBB, Inc.,
a Maryland corporation, WLFL, Inc., a Maryland corporation, WLFL Licensee, Inc.,
a Delaware corporation, WLOS Licensee, Inc., a Delaware corporation, WPGH, Inc.,
a Maryland corporation, WPGH Licensee, Inc., a Maryland corporation, WSMH, Inc.,
a Maryland corporation, WSMH Licensee, Inc., a Delaware corporation, WSTR, Inc.,
a Maryland corporation, WSTR Licensee, Inc., a Maryland corporation, WSYX, Inc.,
a Maryland corporation, WTTE, Channel 28, Inc., a Maryland corporation, WTTE,
Channel 28 Licensee, Inc., a Maryland corporation, WTTO, Inc., a Maryland
corporation, WTTO Licensee, Inc., a Delaware corporation, WTVZ, Inc., a Maryland
corporation, WTVZ Licensee, Inc., a Maryland corporation, WYZZ, Inc., a Maryland
corporation, and WYZZ Licensee, Inc., a Delaware corporation (each a "Guarantor"
and collectively the "Guarantors").
This Agreement is made pursuant to the Purchase Agreement, dated June
24, 1997, among
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the Company, the Guarantors and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial
Purchasers of $200,000,000 aggregate principal amount of the Company's 9% Senior
Subordinated Notes due 2007 (the "Notes"), which Notes are guaranteed (the
"Guarantees") to the extent set forth in the Indenture (as defined below), the
Notes and the Guarantees.
In order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Company and the Guarantors have agreed to provide to the Initial
Purchasers and their direct and indirect transferees the registration rights
with respect to the Notes and the Guarantees as set forth in this Agreement. The
execution of this Agreement is a condition to the closing under the Purchase
Agreement.
1. Definitions.
As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
"Business Day" means any day other than (i) a Saturday or a Sunday, (ii)
a day on which banking institutions in Maryland or The City of New York are
authorized or obligated by law or executive order to close or (iii) a day on
which the office of the trustee or transfer agent, as the case may be, or an
affiliate or agent thereof at which at any particular time the corporate trust
business for the purposes of the Indenture shall be principally administered is
closed for business.
"Closing Date" shall mean the date on which the Notes are initially
issued by the Company and the Guarantees are initially issued by the Guarantors,
in each case, to the Initial Purchasers.
"Commission" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular purpose.
"Company" shall have the meaning set forth in the preamble.
"Effective Time", in the case of (i) an Exchange Offer, shall mean the
time and date as of which the Commission declares the Exchange Offer
Registration Statement effective or as of which the Exchange Offer Registration
Statement otherwise becomes effective and (ii) a Shelf Registration, shall mean
the time and date as of which the Commission declares the Shelf Registration
effective or as of which the Shelf Registration otherwise becomes effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
all as the same shall be amended from time to time.
"Exchange Date" shall have the meaning set forth in Section 2(a)(ii).
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"Exchange Guarantees" shall have the meaning assigned thereto in Section
2(a) hereof.
"Exchange Notes" shall have the meaning assigned thereto in Section 2(a)
hereof.
"Exchange Offer" shall have the meaning assigned thereto in Section 2(a)
hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement of the Company and the Guarantors on Form S-4 (or, if
applicable, on another appropriate form) which covers all of the Exchange
Securities, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Exchange Securities" shall have the meaning assigned thereto in Section
2(a) hereof.
"Guarantees" shall have the meaning set forth in the preamble.
"Guarantors" shall have the meaning set forth in the preamble.
"Holder" shall mean any Initial Purchaser for so long as it owns any
Registrable Securities, and each of its successors, assigns and direct and
indirect transferees who become registered owners of Registrable Securities;
provided, that for purposes of Sections 4 and 5 of this Agreement, the term
"Holder" shall include Participating Broker-Dealers (as defined in Section
4(a)).
"Holders' Information" shall have the meaning assigned thereto in
Section 5(a) hereof.
"Indenture" shall mean the Indenture, dated as of July 2, 1997, among
the Company, the Guarantors and First Union National Bank of Maryland, as
trustee, as the same shall be amended from time to time.
"Initial Purchasers" shall have the meaning set forth in the preamble.
"Majority Holders" shall mean the Holders of a majority of the aggregate
principal amount of outstanding Registrable Securities; provided that, for
purposes of Section 6(a), whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company, its subsidiaries or any of their
respective affiliates (as such term is defined in Rule 405 under the Securities
Act) (other than the Initial Purchasers or subsequent Holders of Registrable
Securities if such subsequent Holders are deemed to be such affiliates solely by
reason of their holding of such Registrable Securities) shall
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not be counted in determining whether such consent or approval was given by the
Holders of such required percentage or amount.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Notes" shall have the meaning set forth in the preamble.
"Offer Termination Date" shall have the meaning set forth in Section
2(a)(iii).
"Participating Broker-Dealer" shall have the meaning set forth in
Section 4(a) hereof.
"Penalty Interest" shall have the meaning assigned thereto in Section
2(d) hereof.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Prescribed Time Period" shall have the meaning set forth in Section
2(d)(i).
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to such prospectus, and in each case including
all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Registrable Securities" shall mean the Securities; provided, however,
that any such Securities shall cease to be Registrable Securities (i) when a
Registration Statement with respect to such Registrable Securities shall have
been declared effective under the Securities Act and such Securities shall have
been disposed of or exchanged pursuant to such Registration Statement, (ii) upon
the expiration of the Exchange Offer period with respect to any Exchange Offer
Registration Statement if all Registrable Securities validly tendered in
connection with such Exchange Offer shall have been exchanged for Exchange
Securities, (iii) when such Securities have been sold or are eligible for sale
to the public pursuant to Rule 144(k) (or any similar provision then in force,
but not Rule 144A) under the Securities Act or (iv) when such Securities shall
have ceased to be outstanding; provided, however, that if an opinion of counsel
to the effect described in Section 2(d)(i)(B) is delivered to the Company and
the Guarantors, then such Securities held by the Initial Purchasers shall not
cease to be Registrable Securities solely by reason of clause (ii) above.
"Registration Default" shall have the meaning assigned thereto in
Section 2(d) hereof.
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"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company and the Guarantors with this
Agreement, including without limitation: (i) all Commission, stock exchange or
NASD registration and filing fees, (ii) all fees and expenses incurred in
connection with compliance with state securities or blue sky laws, (iii) all
expenses of any Person in preparing or assisting in preparing, word processing,
printing and distributing, at the request of the Company and the Guarantors, any
Registration Statement, any Prospectus, any amendments or supplements thereto,
(iv) all fees and disbursements relating to the qualification of the Indenture
and the Guarantors under applicable securities laws, (v) the fees and
disbursements of the Trustee and its counsel and of any escrow agent as
custodian, (vi) the fees and disbursements of counsel for the Company and the
reasonable fees and disbursements of one counsel for the Holders in connection
with an Exchange Offer Registration Statement and a Shelf Registration
Statement, (vii) the fees and disbursements of the independent public
accountants of the Company and the Guarantors, including the expenses of any
special audits or "cold comfort" letters required by or incident to such
performance and compliance, but excluding underwriting discounts, if any, and
commissions and transfer taxes, if any, relating to the sale or disposition of
Registrable Securities by a Holder and (viii) fees, disbursements and expenses
of any "qualified independent underwriter" engaged, if any.
"Registration Statement" shall mean any registration statement of the
Company and the Guarantors that covers any of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement and all
amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Resale Period" shall have the meaning assigned thereto in Section 2(a)
hereof.
"Restricted Holder" shall mean (i) a holder that is an affiliate of the
Company or any of the Guarantors within the meaning of Rule 405, (ii) a Holder
who acquires Exchange Securities outside the ordinary course of such Holder's
business or (iii) a Holder who has arrangements or understandings with any
Person to participate in the Exchange Offer for the purpose of distributing
Exchange Securities.
"Rule 144," "Rule 144A," "Rule 174," "Rule 405," "Rule 415," and "Rule
424" shall mean, in each case, such rule promulgated under the Securities Act.
"Securities" shall mean collectively, the Notes and the Guarantees.
"Securities Act" shall mean the Securities Act of 1933, or any successor
thereto, and the rules, regulations and forms promulgated thereunder, all as the
same shall be amended from time to time.
"Shelf Registration" shall mean a registration under the Securities Act
effected pursuant to Section 2(b) hereof.
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"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company and the Guarantors pursuant to the provisions of
Section 2(b) of this Agreement which covers all of the Registrable Securities on
an appropriate form under Rule 415 under the Securities Act, or any similar rule
that may be adopted by the Commission, and all amendments and supplements to
such registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Trustee" means First Union National Bank of Maryland, as trustee under
the Indenture.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Agreement, and the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision. Unless the context otherwise requires, any
reference to a statute, rule or regulation shall be deemed to be a statute, rule
or regulation (including any successor statute, rule or regulation thereto) as
it may be amended from time to time.
2. Registration under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Company and
the Guarantors agree to use their best efforts to file under the Securities Act
as soon as practicable after the Closing Date, but in no event later than 60
days after such date, an Exchange Offer Registration Statement relating to an
offer by the Company and the Guarantors to exchange (the "Exchange Offer") (i)
any and all of the Notes for a like aggregate amount of notes issued by the
Company, which notes are identical in all material respects to the Notes (the
"Exchange Notes"), except that the Exchange Notes have been registered pursuant
to an effective registration statement under the Securities Act, do not contain
restrictions on transfers (except as they may be held by Restricted Holders) and
provide for the additional interest contemplated in Section 2(d) below for any
periods before such exchange and (ii) any and all of the Guarantees for like
guarantees by the Guarantors, which guarantees are identical to the Guarantees
(the "Exchange Guarantees," and together with the Exchange Notes, the "Exchange
Securities") except that they have been registered pursuant to an effective
registration statement under the Securities Act and do not contain restrictions
on transfers. The Company and the Guarantors agree to use their best efforts to
cause the Exchange Offer Registration Statement to become effective under the
Securities Act as soon as practicable after the filing of the Exchange Offer
Registration Statement but in no event later than 120 days after the Closing
Date. The Exchange Offer will be registered under the Securities Act on the
appropriate form and will comply with all applicable tender offer and other
rules and regulations under the Exchange Act. The Company and the Guarantors
further agree to use their best efforts to commence and consummate the Exchange
Offer promptly after the
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Exchange Offer Registration Statement has become effective, hold the Exchange
Offer open for not less than 20 Business Days (or longer, if required by
applicable law) after the date notice of the Exchange Offer has been mailed to
Holders and exchange Exchange Securities for all Securities that have been
properly tendered and not withdrawn on or prior to the expiration of the
Exchange Offer and to consummate such Exchange Offer within 165 days after the
Closing Date. The Exchange Offer will be deemed to have been completed, as the
case may be, only if the Exchange Securities received by Holders other than
Restricted Holders in the Exchange Offer are, upon receipt, transferable by each
such Holdr without restriction under the Securities Act and the Exchange Act and
without material restrictions under the blue sky or securities laws of the
States of the United States of America. The Exchange Offer shall be deemed to
have been completed upon the Company and the Guarantors having exchanged,
pursuant to the Exchange Offer, the Exchange Securities for all outstanding
Securities, pursuant to the Exchange Offer, properly tendered and not withdrawn
before the expiration of the Exchange Offer, which shall be on a date that is
not less than 20 Business Days (or longer, if required by applicable law)
following the commencement of the Exchange Offer. The Company and the Guarantors
shall commence the Exchange Offer by mailing the related exchange offer
Prospectus and accompanying documents to each Holder stating, in addition to
such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this
Agreement and that all Registrable Securities validly tendered will be
accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a
period of at least 20 Business Days from the date such notice is
mailed) (each such date being an "Exchange Date");
(iii) that a Holder electing to have Registrable Securities
exchanged pursuant to the Exchange Offer will be required to surrender
such Registrable Securities, together with the enclosed letters of
transmittal, to the institution and at the address specified in the
notice prior to the close of business on the last Exchange Date (the
"Offer Termination Date"); and
(iv) that a Holder will be entitled to withdraw his election, not
later than the close of business on the Offer Termination Date, by
sending to the institution and at the address specified in the notice
a telegram, telex, facsimile transmission or letter setting forth the
name of such Holder, the principal amount of Registrable Securities
delivered for exchange and a statement that such Holder is withdrawing
its election to have such Registrable Securities exchanged.
As soon as practicable after the Offer Termination Date, the Company and
the Guarantors shall:
(A) accept for exchange Registrable Securities or portions
thereof tendered and not validly withdrawn pursuant to the Exchange Offer; and
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(B) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities or portions thereof so accepted for
exchange by the Company and the Guarantors and issue, and cause the Trustee to
promptly authenticate and mail to each Holder who has properly tendered and not
withdrawn Registrable Securities pursuant to the Exchange Offer, an Exchange
Security in aggregate principal amount equal to the aggregate principal amount
of the Registrable Securities surrendered by such Holder. The Company shall use
its best efforts to complete the Exchange Offer as provided above and shall
comply with the applicable requirements of the Securities Act, the Exchange Act
and other applicable laws and regulations in connection with the Exchange Offer.
The Exchange Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate applicable law or any applicable interpretation
of the staff of the Commission. The Company shall inform the Initial Purchasers
of the names and addresses of the Holders to whom the Exchange Offer is made,
and the Initial Purchasers shall have the right, subject to applicable law, to
contact such Holders and otherwise facilitate the tender of Registrable
Securities in the Exchange Offer.
Each Holder of Securities participating in the Exchange Offer shall be
required to represent to the Company and the Guarantors that at the time of the
consummation of the Exchange Offer (i) such Holder is not an "affiliate" of the
Company or any Guarantor within the meaning of Rule 405 under the Securities
Act, (ii) the Exchange Securities being acquired by it pursuant to the Exchange
Offer are being obtained in the ordinary course of the business of the person
receiving such Exchange Securities and (iii) such Holder has no arrangement or
understanding with any Person to participate in the distribution of the Exchange
Securities. If such Holder is a Participating Broker-Dealer that will receive
Exchange Securities for its own account in exchange for the Registrable
Securities that were acquired as a result of market-making activities or other
trading activities, it will be required to acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities.
(b) In the event that (i) due to a change in applicable law or
current interpretations by the Commission, the Company and the Guarantors are
not permitted to effect the Exchange Offer for all of the Securities, (ii) the
Exchange Offer for all of the Securities is not for any other reason consummated
within 165 days after the Closing Date, or (iii) any Holder shall, within 30
days after consummation of the Exchange Offer, notify the Company and the
Guarantors that such Holder (x) is prohibited by applicable law or Commission
policy from participating in the Exchange Offer, (y) may not resell Exchange
Securities acquired by it in the Exchange Offer to the public without delivering
a prospectus and that the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales by such
Holder or (z) is a broker-dealer and holds Securities acquired directly from the
Company and Guarantors or an "affiliate" of the Company or any Guarantor, then
in addition to or in lieu of conducting the Exchange Offer contemplated by
Section 2(a), or (iv) at the request of any of the Initial Purchasers, the
Company and the Guarantors will be required to file a "shelf" registration
statement (a "Shelf Registration Statement") covering resales (a) by the Holders
of Registrable Securities in the event the Company and the Guarantors are not
permitted to effect the Exchange
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Offer pursuant to the foregoing clause (i) or the Exchange Offer is not
consummated within 165 days after the Closing Date pursuant to the foregoing
clauses (i) or (ii) or (b) by the Holders of Registrable Securities with respect
to which the Company and the Guarantors receive notice pursuant to the foregoing
clauses (iii) or (iv). The Trustee will promptly deliver to the Holders written
notice that the Company and the Guarantors will be complying with the provisions
of this Section 2(b). The Company and the Guarantors agree to use their best
efforts to cause the Shelf Registration to become or be declared effective and
to keep such Shelf Registration continuously effective for a period of time
ending on the second anniversary of the Effective Time (the "Effective Period")
or such shorter period that will terminate when all of the Registrable
Securities covered by the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement. The Company and the Guarantors shall, if
they file a Shelf Registration Statement, provide to each Holder of the
Registrable Securities copies of the Prospectus contained therein and notify
each such Holder when the Shelf Registration Statement has become effective. The
Company and the Guarantors further agree to supplement or make amendments to the
Shelf Registration Statement, as and when required by the rules, regulations or
instructions applicable to the registration form used by the Company and the
Guarantors for such Shelf Registration Statement or by the Securities Act or
rules and regulations thereunder for shelf registrations, and the Company and
the Guarantors agree to furnish to the Holders of the Registrable Securities
copies of any such supplement or amendment prior to its being used or promptly
following its filing with the Commission.
(c) The Company and the Guarantors shall, jointly and
severally, pay all Registration Expenses in connection with the registration
pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting
discounts, if any, and commissions and transfer taxes, if any, relating to the
sale or disposition of such Holder's Registrable Securities pursuant to the
Exchange Offer Registration Statement or a Shelf Registration Statement, as the
case may be.
(d) An Exchange Offer Registration Statement pursuant to
Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b)
hereof will not be deemed to have become effective unless it has been declared
effective by the Commission; provided, however, that, if, after it has been
declared effective, the offering of Registrable Securities pursuant to an
Exchange Offer Registration Statement or a Shelf Registration Statement is
interfered with by any stop order, injunction or other order or requirement of
the Commission or any other governmental agency or court, such Registration
Statement will be deemed not to have been effective during the period of such
interference until the offering of Registrable Securities pursuant to such
Registration Statement may legally resume. If the Company and the Guarantors
shall fail to comply with this Agreement or if the Exchange Offer Registration
Statement or the Shelf Registration fails to become effective (any such event, a
"Registration Default"), then, as liquidated damages, registration default
interest (the "Penalty Interest"), shall become payable in respect of the Notes
as follows:
(i) (A) if an Exchange Offer Registration Statement or, in the
event of a change in applicable law or due to current interpretations by
the Commission the Company and the Guarantors are not permitted to
effect the Exchange Offer, a Shelf Registration
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Statement, is not filed within 60 days following the Closing Date, (B)
in the event that within the 30 days after consummation of the Exchange
Offer, any Holder of the Registrable Securities shall notify the Company
and the Guarantors that such Holder (x) is prohibited by applicable law
or Commission policy from participating in the Exchange Offer, (y) may
not resell Exchange Securities acquired by it in the Exchange Offer to
the public without delivering a prospectus and that the Prospectus
contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder or (z) is a
broker-dealer and holds Securities acquired directly from the Company
and the Guarantors or an "affiliate" of the Company or any Guarantor and
a Shelf Registration Statement is not filed within 60 days after such
notice or (C) upon the request of an Initial Purchaser, a Shelf
Registration Statement is not filed within 60 days after such request,
then commencing on either the 61st day after the Closing Date or the
expiration of either of the 60-day time periods set forth in clauses (B)
and (C) above (either, a "Prescribed Time Period"), as the case may be,
Penalty Interest shall be accrued on the Notes over and above the stated
payment rates thereon at a rate of .50% per annum for the first 90 days
immediately following either the 61st day after the Closing Date or the
expiration of the Prescribed Time Period, as the case may be, such
Penalty Interest rate increasing by an additional .25% per annum at the
beginning of each subsequent 90-day period;
(ii) if an Exchange Offer Registration Statement or a Shelf
Registration Statement is filed pursuant to clause (i) of the preceding
full paragraph and is not declared effective within either 120 days
following the Closing Date or 60 days following the expiration of the
Prescribed Time Period, as the case may be, then commencing on the 121st
day after either the Closing Date or the 61st day following the
expiration of the Prescribed Time Period, as the case may be, Penalty
Interest shall be accrued on the Notes over and above the accrued stated
payment rates thereon at a rate of .50% per annum for the first 90 days
immediately following the 121st day after either the Closing Date or the
61st day after the expiration of the Prescribed Time Period, as the case
may be, such Penalty Interest rate increasing by an additional .25% per
annum at the beginning of each subsequent 90-day period; and
(iii) if either (A) the Company and the Guarantors have not
exchanged Exchange Securities for all Securities validly tendered in
accordance with the terms of the Exchange Offer on or prior to 165 days
after the Closing Date, or (B) if applicable, a Shelf Registration
Statement has been declared effective and such Shelf Registration
Statement ceases to be effective prior to the end of the Effective
Period, or such shorter period that will terminate when all of the
Securities covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement, then, subject to certain
exceptions, Penalty Interest shall be accrued on the Notes over and
above the stated payment rates at a rate of .50% per annum for the first
60 days immediately following the (x) the 166th day after the Closing
Date in the case of (A) above or (y) the day such Shelf Registration
Statement ceases to be effective in the case of (B) above, such Penalty
Interest rate increasing by an additional .25% per annum at the
beginning of each subsequent 90-day period;
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provided, however, that the Penalty Interest rate on any of the applicable Notes
may not exceed 1.5% per annum; and provided further, that (1) upon the filing of
the Exchange Offer Registration Statement or a Shelf Registration Statement (in
the case of (i) above), (2) upon the effectiveness of the Exchange Offer
Registration Statement or a Shelf Registration Statement (in the case of (ii)
above), or (3) upon the exchange of Exchange Securities for all Securities
tendered into the Exchange Offer or upon the effectiveness of the Shelf
Registration Statement which had ceased to remain effective prior to the end of
the Effective Period (in the case of (iii) above), Penalty Interest as a result
of such clause (i), (ii) or (iii) shall cease to accrue.
Any Penalty Interest due pursuant to clause (i), (ii) or (iii) above
will be payable in cash on the various payment dates related to the Notes. The
Penalty Interest will be determined by multiplying the applicable Penalty
Interest rate by the principal amount of the Notes multiplied by a fraction, the
numerator of which is the number of days such Penalty Interest rate was
applicable during such period, and the denominator of which is 360.
If the Company and the Guarantors effect the Exchange Offer, the Company
and the Guarantors will be entitled to close the Exchange Offer provided that it
has accepted all Registrable Securities theretofore validly tendered in
accordance with the terms of the Exchange Offer. Registrable Securities not
tendered in the Exchange Offer shall bear interest at the same rate as in effect
at the time of issuance of the Registrable Securities.
(e) Without limiting the remedies available to the Initial
Purchasers and the Holders, the Company and the Guarantors acknowledge that any
failure by the Company and the Guarantors to comply with their obligations under
Section 2(a) and Section 2(b) hereof may result in material irreparable injury
to the Holders for which there is no adequate remedy at law, that it will not be
possible to measure damage for such injuries precisely and that, in the event of
any such failure, the Initial Purchasers or any Holder may obtain such relief as
may be required to specifically enforce the Company's and the Guarantors'
obligations under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures.
In connection with the obligations of the Company and the Guarantors
with respect to the Registration Statements pursuant to Section 2(a) and Section
2(b) hereof, the Company and the Guarantors shall as promptly as practicable:
(a) prepare and file with the Commission a Registration
Statement on the appropriate form under the Securities Act, which form shall (x)
be selected by the Company and the Guarantors, (y) in the case of a Shelf
Registration, be available for the sale of the Registrable Securities by the
selling Holders thereof and (z) comply as to form in all material respects with
the requirements of the applicable form and include all financial statements
required by the Commission to be filed therewith or incorporated by reference
therein, as the case may be, and use their best efforts to cause such
Registration Statement to become effective and remain
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effective as promptly as practicable in accordance with Section 2 hereof;
(b) prepare and file with the Commission such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement effective for the applicable period and cause
each Prospectus to be supplemented by any required prospectus supplement and, as
so supplemented, to be filed pursuant to Rule 424 under the Securities Act or,
in the case of a Shelf Registration, file, or cause to be filed, promptly all
reports required to be filed pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act required to be incorporated by reference therein; and keep each
Prospectus current during the period described under Section 4(3) and Rule 174
under the Securities Act that is applicable to transactions by brokers or
dealers with respect to the Registrable Securities or Exchange Securities;
(c) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities to which such Shelf Registration Statement
relates, to counsel for the Initial Purchasers and to counsel for the Holders,
without charge, one conformed copy of the Shelf Registration Statement (and any
post-effective amendment thereto) and exhibits thereto and as many copies of
each Prospectus, including each preliminary Prospectus and any amendment or
supplement thereto, reasonably requested to facilitate the public sale or other
disposition of the Registrable Securities; and the Company's and the Guarantors'
consent to the use of such Prospectus and any amendment or supplement thereto in
accordance with applicable law by each of the selling Holders of Registrable
Securities in connection with the offering and sale of the Registrable
Securities covered by and in the manner described in such Prospectus or any
amendment or supplement thereto in accordance with applicable law;
(d) use their best efforts (i) to register or qualify the
Registrable Securities under all applicable state securities or blue sky laws or
such jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement shall reasonably request in writing by the time the
applicable Registration Statement is declared effective by the Commission, (ii)
keep such registrations or qualifications in effect and comply with such laws so
as to permit the continuance of offers, sales and dealings therein in such
jurisdictions during the period the Shelf Registration Statement is required to
remain effective under Section 2(b) above and for so long as may be necessary to
enable any such Holder, agent or underwriter to complete its distribution of the
Securities pursuant to such Registration Statement but in no event longer than
two years and (iii) to cooperate with such Holders in connection with any
filings required to be made with the NASD and do any and all other acts and
things which may be reasonably necessary or advisable to enable such Holder to
consummate the disposition in each such jurisdiction of such Registrable
Securities owned by such Holder; provided, however, that the Company and the
Guarantors shall not be required to (A) qualify as foreign corporations or as
dealers in securities in any jurisdiction where they would not otherwise be
required to qualify but for this Section 3(d), (B) file any general consent to
service of process or (C) subject themselves to taxation in any such
jurisdiction if they are not so subject;
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(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities, counsel for the Holders and for the Initial Purchasers
(or, if applicable, separate counsel for the Holders) and, if requested by such
Persons, confirm such advice in writing, (i) when the Shelf Registration
Statement has become effective and when any post-effective amendment thereto has
been filed and becomes effective, (ii) of any request by the Commission or any
state securities authority for amendments and supplements to the Shelf
Registration Statement and Prospectus or for additional information after the
Shelf Registration Statement has become effective, (iii) of the issuance by the
Commission or any state securities authority of any stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation of any
proceedings for that purpose, (iv) if the Company or any Guarantor receives any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose, (v) of the happening of any event during the period
a Shelf Registration Statement is effective which makes any statement made in
such Shelf Registration Statement or the related Prospectus untrue in any
material respect or which requires the making of any changes in such Shelf
Registration Statement or document incorporated by reference therein in order to
make the statements therein not misleading or which requires the making of any
changes in the Prospectus or documents incorporated by reference therein in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading and (vi) of any determination by the Company and
the Guarantors that a post-effective amendment to the Shelf Registration
Statement would be appropriate;
(f) use their best efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the earliest
possible moment and provide prompt notice to each Holder of the withdrawal of
any such order;
(g) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends (unless required by applicable securities
laws) and enable such Registrable Securities to be in such denominations
(consistent with the provisions of the Indenture) and registered in such names
as the selling Holders may reasonably request at least two Business Days prior
to the closing of any sale of Registrable Securities;
(h) in the case of a Shelf Registration, upon the occurrence
of any event contemplated by Section 3(e)(v) hereof, use their best efforts to
prepare a supplement or post-effective amendment to the Shelf Registration
Statement or the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Securities, such Prospectus will not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided that the Company and the
Guarantors agree to notify the Holders to suspend use of the Prospectus as
promptly as practicable after the occurrence of such an event, and the Holders
hereby agree to suspend use of the Prospectus until the Company and the
Guarantors have
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amended or supplemented the Prospectus or any document incorporated by reference
therein to correct such misstatement or omission;
(i) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or any document incorporated by
reference therein, provide copies of such document to the Initial Purchasers and
their counsel (and, in the case of a Shelf Registration Statement, counsel for
the Holders) and make such of the representatives of the Company and the
Guarantors as shall be reasonably requested by the Initial Purchasers or their
counsel (and, in the case of a Shelf Registration Statement, counsel for the
Holders) available for discussion of such document, and shall not at any time
file or make any amendment to the Registration Statement, any Prospectus or any
amendment of or supplement to a Registration Statement or a Prospectus, of which
the Initial Purchasers and their counsel (and, in the case of a Shelf
Registration Statement, counsel for the Holders) shall not have previously been
advised and furnished a copy or to which the Initial Purchasers or their counsel
(and, in the case of a Shelf Registration Statement, counsel for the Holders)
shall reasonably object promptly in light of the circumstances in which made;
(j) obtain a CUSIP number for all Exchange Securities or
Registrable Securities (if applicable), as the case may be, not later than the
Effective Time;
(k) cause the Indenture and the Guarantees to be qualified
under the Trust Indenture Act in connection with the registration of the
applicable Exchange Securities or applicable Registrable Securities, as the case
may be, cooperate with the Trustee and the Holders to effect such changes to the
Indenture and the Guarantees as may be required for the Indenture and the
Guarantees to be so qualified in accordance with the terms of the Trust
Indenture Act and execute, and use their best efforts to cause the Trustee to
execute, all documents as may be required to effect such changes and all other
forms and documents required to be filed with the Commission to enable the
Indenture and the Guarantees, as the case may be, to be so qualified in a timely
manner;
(l) in the case of a Shelf Registration, make reasonably
available for inspection by one representative of the Holders of the Registrable
Securities, counsel for the Holders and accountants designated by the Holders
and reasonably acceptable to the Company and the Guarantors, at reasonable times
and in a reasonable manner and subject to the execution of customary
confidentiality agreements, all financial and other records, pertinent documents
and properties of the Company and the Guarantors, and cause the respective
officers, directors and employees of the Company and the Guarantors to supply
all information reasonably requested, and as is customary for similar due
diligence examinations, by any such representative, attorney or accountant in
connection with a Shelf Registration Statement;
(m) if requested by any Holder of Registrable Securities
covered by a Registration Statement, (i) promptly include in a Prospectus
supplement or post-effective
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amendment or document incorporated by reference in such Prospectus such
information with respect to such Holder as such Holder requests to be included
therein and (ii) make all required filings of such Prospectus supplement or such
post-effective amendment as soon as the Company and the Guarantors have received
notification of the matters to be included in such filing; and
(n) in the case of a Shelf Registration or an Exchange Offer
Registration, if the Initial Purchasers on behalf of the Holders shall so
request, enter into such customary agreements and take all such other reasonable
actions in connection therewith (including, those reasonably requested by
counsel for the Holders) in order to expedite or facilitate the disposition of
such Registrable Securities and in such connection, (i) to the extent possible,
make such representations and warranties to the Holders of such Registrable
Securities with respect to the business of the Company, the Guarantors and their
respective subsidiaries, the Registration Statement, the Prospectus and
documents deemed incorporated by reference, if any, in each case, in form,
substance and scope as are customarily made by issuers to underwriters in
underwritten offerings and confirm the same if and when requested, (ii) use
their best efforts to obtain opinions of counsel to the Company and the
Guarantors (which counsel and opinions, in form, scope and substance, shall be
reasonably satisfactory to counsel to the Holders) addressed to each selling
Holder of Registrable Securities, covering the matters customarily covered in
opinions requested in underwritten offerings, (iii) use their best efforts to
obtain "cold comfort" letters from the independent certified public accountants
of the Company and the Guarantors (and, if necessary, any other certified public
accountant of any subsidiary of the Company, any Guarantor or any business
acquired by the Company or Guarantor for which financial statements and
financial data are or are required to be included or incorporated by reference
in the Registration Statement) addressed to each selling Holder of Registrable
Securities, such letters to be in customary form and covering matters of the
type customarily covered in "cold comfort" letters in connection with
underwritten offerings and (iv) deliver such documents and certificates as may
be reasonably requested by counsel for the Holders to evidence the continued
validity of the representations and warranties of the Company and the Guarantors
made pursuant to clause (i) above and to evidence compliance with any customary
conditions in an underwriting agreement.
In the case of a Shelf Registration Statement, the Company and the
Guarantors may require each Holder of Registrable Securities to promptly furnish
to the Company and the Guarantors such information regarding the Holder and the
proposed distribution by such Holder of such Registrable Securities as the
Company and the Guarantors may from time to time reasonably request in writing
and the Company and the Guarantors may exclude from such registration the
Registrable Securities of any Holder that unreasonably fails to furnish such
information within a reasonable time after receiving such request.
In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any notice from the Company and the Guarantors of the happening
of any event of the kind described in Section 3(e)(ii) through (v) hereof, such
Holder will forthwith discontinue disposition of Registrable Securities pursuant
to such Shelf Registration Statement until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 3(h) hereof,
and,
-15-
if so directed by the Company and the Guarantors, such Holder will deliver to
the Company and the Guarantors (at its expense) all copies in its possession,
other than permanent file copies then in such Holder's possession, of the
Prospectus covering such Registrable Securities current at the time of receipt
of such notice. Each Holder agrees to indemnify the Company, the Guarantors, the
Initial Purchasers and the other selling Holders and each of their respective
officers and directors who sign the Shelf Registration Statement and each
Person, if any, who controls any such Person for any losses, claims, damages and
liabilities caused by the failure of such Holder to discontinue disposition of
Registrable Securities after receipt of the notice referred to in the preceding
sentence or the failure of such Holder to comply with applicable prospectus
delivery requirements with respect to any Prospectus (including, but not limited
to, any amended or supplemented Prospectus) provided by the Company and the
Guarantors for such use.
(o) comply, as to all matters within the Company's and the
Guarantors' control, with the provisions of the Securities Act with respect to
the disposition of all of the Registrable Securities covered by such
Registration Statement in accordance with the intended methods of disposition by
the Holders thereof provided for in such Registration Statement;
(p) use their best efforts to obtain the consent or approval
of each governmental agency or authority, whether federal, state or local, which
may be required to be obtained by the Company and the Guarantors to effect the
Shelf Registration or the offering or sale of Securities in connection therewith
or to enable the selling Holder or Holders to offer, or to consummate the
disposition of, their Registrable Securities;
(q) notify in writing each Holder of Registrable Securities of
any proposal by the Company and the Guarantors to amend or waive any provision
of this Agreement pursuant to Section 7(b) hereof and of any amendment or waiver
effected pursuant thereto, each of which notices shall contain the text of the
amendment or waiver proposed or effected, as the case may be;
(r) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or participate as a
member of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Conduct Rules and the ByLaws of the
NASD or any successor thereto, as amended from time to time) thereof, whether as
a Holder of such Registrable Securities or as an underwriter, a placement or
sales agent or a broker or dealer in respect thereof, or otherwise, assist such
broker-dealer in complying with the requirements of such Rules and By-Laws,
including by (A) if such Conduct Rules or By-Laws shall so require, permitting a
"qualified independent underwriter" (as defined in such Conduct Rules or By-Laws
(or any successor thereto)) to participate in the preparation of the
Registration Statement relating to such Registrable Securities, to exercise
usual standards of due diligence in respect thereto and, if any portion of the
offering contemplated by such Registration Statement is an underwritten offering
or is made through a placement or sales agent, to recommend the yield of such
Registrable Securities, (B) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters provided in
Section 5 hereof and (C) providing such information to such broker-dealer as may
be required in order for such broker-dealer to comply
-16-
with the requirements of the Conduct Rules or By-Laws of the NASD; and
(s) make generally available to its security holders as soon
as practicable but in any event not later than eighteen months after the
effective date of such Registration Statement, an earnings statement of the
Company and its subsidiaries complying with Section 11(a) of the Securities Act
(including, at the option of the Company, Rule 158 thereunder).
4. Participation of Broker-Dealers in Exchange Offer.
(a) Each of the Company and the Guarantors understands that
the staff of the Commission has taken the position that any broker-dealer that
receives Exchange Securities for its own account in the Exchange Offer in
exchange for Securities that were acquired by such broker-dealer as a result of
market-making or other trading activities (a "Participating Broker-Dealer"), may
be deemed to be an "underwriter" within the meaning of the Securities Act in
connection with any resale of such Exchange Securities and, therefore, must
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resales of the Exchange Securities received by it in the
Exchange Offer.
Each of the Company and the Guarantors understands that it is the
staff's position that if the Prospectus contained in the Exchange Offer
Registration Statement includes a plan of distribution containing a statement to
the above effect and the means by which Participating Broker-Dealers may resell
the Exchange Securities, without naming the Participating Broker- Dealers or
specifying the amount of Exchange Securities owned by them, such Prospectus may
be delivered by Participating Broker-Dealers to satisfy their prospectus
delivery obligations under the Securities Act in connection with resales of
Exchange Securities for their own accounts, so long as the Prospectus otherwise
meets the requirements of the Securities Act.
(b) In light of the above, notwithstanding the other
provisions of this Agreement, the Company and the Guarantors agree: to cause the
Exchange Offer Registration Statement to remain effective for a period 180 days
after the Offer Termination Date (or such earlier date as each Participating
Broker-Dealer shall have notified the Company and the Guarantors in writing that
such Participating Broker-Dealer has resold all such Exchange Securities
received in the Exchange Offer) and shall amend or supplement the Prospectus or
document incorporated by reference therein, as the case may be, contained in the
Exchange Offer Registration Statement, as would otherwise be contemplated by
Section 3(h) for such a period, and Participating Broker-Dealers shall not be
authorized by the Company and the Guarantors to deliver and shall not deliver
such Prospectus after such period in connection with the resales contemplated by
this Section 4.
(c) The Initial Purchasers shall have no liability to the
Company, the Guarantors or any Holder for costs and expenses of the Exchange
Offer Registration with respect to any request that they make pursuant to
Section 4(b) above.
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5. Indemnification and Contribution.
(a) The Company and the Guarantors, jointly and severally,
agree to indemnify and hold harmless the Initial Purchasers, each Holder and
each Person, if any who controls the Initial Purchasers or any Holder within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages, liabilities and
expenses (including the reasonable fees and expenses of counsel and other
expenses in connection with investigating, defending or settling such action or
claim) arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement (or any
amendment or supplement thereto) pursuant to which Exchange Securities or
Registrable Securities were registered under the Securities Act (including all
documents incorporated therein by reference) or arising out of or based upon any
omissions or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in any Prospectus (as amended or supplemented if the
Company and the Guarantors shall have furnished any amendments or supplements
thereto), or arising out of or based upon any omission or alleged omission to
state therein a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading, except insofar
as such losses, claims, damages, liabilities or expenses arise out of or are
based upon any untrue statement or omission or alleged untrue statement or
omission which has been made therein or omitted therefrom in reliance upon and
in conformity with the information furnished in writing to the Company and the
Guarantors by or on behalf of any Holder expressly for use in connection
therewith ("Holders' Information"); provided, however, that the indemnification
contained in this paragraph (a) with respect to any preliminary Prospectus shall
not inure to the benefit of the Holders (or to the benefit of any Person
controlling any Holder) on account of any such loss, claim, damage, liability or
expense arising from the sale of such Registrable Securities or Exchange
Securities by the Holders to any Person if a copy of such preliminary Prospectus
shall not have been delivered or sent to such Person at or prior to written
confirmation of such sale, and the untrue statement or alleged untrue statement
or omission or alleged omission of a material fact contained in the preliminary
Prospectus was corrected in the Prospectus, provided that the Company and the
Guarantors have delivered the Prospectus to the Holders in requisite quantity on
a timely basis to permit delivering and sending. The foregoing indemnity
agreement shall be in addition to any liability which the Company and the
Guarantors may otherwise have.
(b) If any action, suit or proceeding shall be brought against
the Holders or any Person controlling the Holders in respect of which indemnity
may be sought against the Company and the Guarantors, such Holders or such
controlling Person shall promptly notify the parties against whom
indemnification is being sought (the "indemnifying parties"), and such
indemnifying parties shall assume the defense thereof, including the employment
of counsel and payment of all fees and expenses. Such Holders or any such
controlling Person shall have the right to employ separate counsel in any such
action, suit or proceeding and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such Holders or
such
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controlling Person unless (i) the indemnifying parties have agreed in writing to
pay such fees and expenses, (ii) the indemnifying parties have failed to assume
the defense and employ counsel, or (iii) the named parties to any such action,
suit or proceeding (including any impleaded parties) include both such Holders
or such controlling Person and the indemnifying parties and such Holders or such
controlling Person shall have been advised by its counsel that representation of
such indemnified party and any indemnifying party by the same counsel would be
inappropriate under applicable standards of professional conduct (whether or not
such representation by the same counsel has been proposed) due to actual or
potential differing interests between them (in which case the indemnifying party
shall not have the right to assume the defense of such action, suit or
proceeding on behalf of such Holders or such controlling Person). It is
understood, however, that the indemnifying parties shall, in connection with any
one such action, suit or proceeding or separate but substantially similar or
related actions, suits or proceedings in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of only one separate firm of atorneys (in addition to any local
counsel) at any time for such Holders and controlling Persons not having actual
or potential differing interests with such Holder or among themselves, which
firm shall be designated in writing by Smith Barney Inc., and that all such fees
and expenses shall be reimbursed as they are incurred. The indemnifying parties
shall not be liable for any settlement of any such action, suit or proceeding
effected without their written consent, but if settled with such written
consent, or if there be a final judgment for the plaintiff in any such action,
suit or proceeding, the indemnifying parties agree to indemnify and hold
harmless any Holders, to the extent provided in the preceding paragraph, and any
such controlling Person from and against any loss, claim, damage, liability or
expense by reason of such settlement or judgment.
(c) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless each of the Company, the Guarantors, each of their
respective directors and officers, and any Person who controls the Company or
any of the Guarantors within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act, to the same extent as the foregoing indemnity
from the Company and the Guarantors to each Holder, but only with respect to the
Holders' Information. If any action, suit or proceeding shall be brought against
the Company, any of the Guarantors, any of their respective directors or
officers, or any such controlling Persons based on any Registration Statement
(or any amendment thereto) or any Prospectus (or any amendment or supplement
thereto), and in respect of which indemnity may be sought against any Holder
pursuant to this paragraph (c), such Holder shall have the rights and duties
given to the Company and the Guarantors by paragraph (b) above (except that if
the Company and the Guarantors shall have assumed the defense thereof such
Holder shall not be required to do so, but may employ separate counsel therein
and participate in the defense thereof, but the fees and expenses of such
counsel shall be at such Holder's expense), and the Company, the Guarantors,
their respective directors and officers, and any such controlling Persons shall
have the rights and duties given to the Holders by paragraph (b) above. The
foregoing indemnity agreement shall be in addition to any liability which any
Holders may otherwise have.
(d) If the indemnification provided for in this Section 5 is
unavailable to an
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indemnified party under paragraphs (a) or (c) hereof in respect of any losses,
claims, damages, liabilities or expenses referred to therein, then an
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses (i) in such proportion
as is appropriate to reflect the relative benefits of the Company and the
Guarantors on the one hand, the Holders on another hand, and the Initial
Purchasers on another hand, from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Guarantors on the one hand, the Holders on another hand, and the Initial
Purchasers on another hand, in connection with the statements or omissions that
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative benefits received by
the Company and the Guarantors from the offering of the Securities included in
any Registration Statement shall in each case be deemed to include the proceeds
received by the Company in connection with the offering of the Securities
pursuant to the Purchase Agreement. The parties hereto agree that any
underwriting discount or commission or reimbursement of fees paid to the Initial
Purchasers pursuant to the Purchase Agreement shall not be deemed to be a
benefit received by the Initial Purchasers in connection with the offering of
the Securities included in any Registration Statement. The relative fault of the
Company and the Guarantors on the one hand, the Holders on another hand, and the
Initial Purchasers on another hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company and the Guarantors on the one hand, by the
Holders on another hand, and the Initial Purchasers on another hand, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The Company, the Guarantors and each Holder agree that it
would not be just or equitable if contribution pursuant to this Section 5 were
determined by pro rata allocation or by any other method of allocation that does
not take account of the equitable considerations referred to in paragraph (d)
above. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities and expenses referred to in paragraph (d)
above shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5, no Holder shall be required to
indemnify or contribute any amount in excess of the amount by which the total
price at which Registrable Securities were sold by such Holder exceeds the
amount of any damages that such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute pursuant to this Section 5 are several in proportion
to the aggregate principal amount of Securities purchased by such Holder and not
joint.
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(f) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action, suit or proceeding in respect of which any indemnified party
is or could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement (i) includes an unconditional
release of such indemnified party from all liability or claims that are the
subject matter of such action, suit or proceeding and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of any indemnified party.
(g) Any losses, claims, damages, liabilities or expenses
(including counsel fees pursuant to paragraph (b) above) for which an
indemnified party is entitled to indemnification or contribution under this
Section 5 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 5 shall remain
operative and in full force and effect, regardless of (i) any investigation made
by or on behalf of any Holder or any Person controlling any Holder, the
Company's or any Guarantor's directors or officers or any Person controlling the
Company or any Guarantor, (ii) acceptance of any Exchange Securities and (iii)
any sale of Registrable Securities pursuant to a Shelf Registration Statement.
6. Underwritten Offerings; Rule 144.
(a) Selection of Underwriters. If any of the Registrable
Securities covered by the Shelf Registration are to be sold pursuant to an
underwritten offering, the managing underwriter or underwriters thereof shall be
designated by the Holders of at least a majority in aggregate principal amount
of the Registrable Securities to be included in such offering, provided that
such designated managing underwriter or underwriters is or are reasonably
acceptable to the Company.
(b) Participation by Holders. Each Holder of Registrable
Securities hereby agrees with each other such Holder that no such Holder may
participate in any underwritten offering hereunder unless such Holder (i) agrees
to sell such Holder's Registrable Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
(c) Rule 144. For so long as the Company is subject to the
reporting requirements of Section 13 or 15 of the Exchange Act, the Company
covenants to the Holders of Registrable Securities that the Company shall timely
file the reports required to be filed by it under the Exchange Act or the
Securities Act (including the reports under Sections 13 and 15(d) of the
Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted by the
Commission under the Securities Act) and the rules and regulations adopted by
the Commission thereunder, that if it ceases to be so required to file such
reports, it will upon the request of any Holder of Registrable Securities (i)
make publicly available such information as is necessary to permit sales
pursuant to Rule 144 under the Securities Act, (ii) deliver such information to
a prospective purchaser as is
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necessary to permit sales pursuant to Rule 144 under the Securities Act and it
will take such further action as any Holder of Registrable Securities may
reasonably request, and shall take such further action as any Holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such Holder to sell Registrable Securities without
registration under the Securities Act within the limitations of the exemption
provided by Rule 144 under the Securities Act, as such Rule may be amended from
time to time, or any similar or successor rule or regulation hereafter adopted
by the Commission. Upon the request of any Holder of Registrable Securities in
connection with that Holder's sale pursuant to Rule 144, the Company shall
deliver to such Holder a written statement as to whether it has complied with
such requirements.
7. Miscellaneous.
(a) No Inconsistent Agreements. The Company and the Guarantors
have not entered into, and on or after the date of this Agreement will not enter
into, any agreement which is inconsistent with the rights granted to the Holders
of Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
the Company's other issued and outstanding securities under any such agreements.
(b) Entire Agreement; Amendments and Waivers. This Agreement
and the other writings referred to herein or delivered pursuant hereto which
form a part hereof contain the entire understanding of the parties with respect
to its subject matter. This Agreement supersedes all prior agreements and
understandings between the parties with respect to its subject matter. The
provisions of this Agreement, including the provisions of this sentence, may not
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given unless the Company and the Guarantors
have obtained the written consent of the Majority Holders of whatever Securities
are publicly held; provided, however, that no departure from the provisions of
Section 5 hereof shall be effective as against any Holder of Registrable
Securities unless consented to in writing by such Holder.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company and the Guarantors by means of a notice given in accordance with the
provisions of this Section 7(c), which address initially is, with respect to the
Initial Purchasers, the address set forth in the Purchase Agreement; and (ii) if
to the Company or the Guarantors at the Company's address set forth in the
Purchase Agreement and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 7(c).
All such notices and communications shall be deemed to have been duly
given at the time delivered, if personally delivered; five Business Days after
being deposited in the mail, postage pre-paid, if mailed; when answered back, if
telexed; when receipt is acknowledged, if telecopied;
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and on the next Business Day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment or assumption, subsequent Holders; provided that nothing
herein shall be deemed to permit any assignment, transfer or other disposition
of Registrable Securities in violation of the terms of the Purchase Agreement.
If any transferees of any Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such Registrable Securities,
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement and such Person shall be entitled to receive the benefits hereof.
The Initial Purchasers shall have no liability or obligation to the Company or
the Guarantors with respect to any failure by a Holder (other than the Initial
Purchasers) to comply with, or any breach by any Holder of, the obligations of
such Holder under this Agreement.
(e) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, the
Guarantors and the Initial Purchasers and shall have the right to enforce such
agreements directly to the extent they deem such enforcement necessary or
advisable to protect their rights hereunder.
(f) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) Governing Law. This Agreement shall be governed by laws of
the State of New York.
(i) Severability. In the event that one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
SINCLAIR BROADCAST GROUP, INC.
CHESAPEAKE TELEVISION, INC.
CHESAPEAKE TELEVISION LICENSEE
FSF-TV, INC.
KABB LICENSEE, INC.
KDNL LICENSEE, INC.
KDSM, INC.
KDSM LICENSEE, INC.
KSMO, INC.
KSMO LICENSEE, INC.
KUPN LICENSEE, INC.
SCI-INDIANA LICENSEE, INC.
SCI-SACRAMENTO LICENSEE, INC.
SINCLAIR COMMUNICATIONS, INC.
SINCLAIR RADIO OF ALBUQUERQUE, INC.
SINCLAIR RADIO OF ALBUQUERQUE LICENSEE, INC.
SINCLAIR RADIO OF BUFFALO, INC.
SINCLAIR RADIO OF BUFFALO LICENSEE, INC.
SINCLAIR RADIO OF GREENVILLE, INC.
SINCLAIR RADIO OF GREENVILLE LICENSEE, INC.
SINCLAIR RADIO OF LOS ANGELES, INC.
SINCLAIR RADIO OF LOS ANGELES LICENSEE, INC.
SINCLAIR RADIO OF MEMPHIS, INC.
SINCLAIR RADIO OF MEMPHIS LICENSEE, INC.
SINCLAIR RADIO OF NASHVILLE, INC.
SINCLAIR RADIO OF NASHVILLE LICENSEE, INC.
SINCLAIR RADIO OF NEW ORLEANS, INC.
SINCLAIR RADIO OF NEW ORLEANS LICENSEE, INC.
SINCLAIR RADIO OF ST. LOUIS, INC.
SINCLAIR RADIO OF ST. LOUIS LICENSEE, INC.
SINCLAIR RADIO OF WILKES-BARRE, INC.
SINCLAIR RADIO OF WILKES-BARRE LICENSEE, INC.
SUPERIOR COMMUNICATIONS OF KENTUCKY, INC.
SUPERIOR COMMUNICATIONS OF OKLAHOMA, INC.
SUPERIOR KY LICENSE CORP.
SUPERIOR OK LICENSE CORP.
TUSCALOOSA BROADCASTING, INC.
WCGV, INC.
WCGV LICENSEE, INC.
WDBB, INC.
WLFL, INC.
WLFL LICENSEE, INC.
WLOS LICENSEE, INC.
WPGH, INC.
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WPGH LICENSEE, INC.
WSMH, INC.
WSMH LICENSEE, INC.
WSTR, INC.
WSTR LICENSEE, INC.
WSYX, INC.
WTTE, CHANNEL 28, INC.
WTTE, CHANNEL 28 LICENSEE, INC.
WTTO, INC.
WTTO LICENSEE, INC.
WTVZ, INC.
WTVZ LICENSEE, INC.
WYZZ, INC.
WYZZ LICENSEE, INC.
By: /s/ David D. Smith
------------------------------------
Name: David D. Smith
Title: President
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Confirmed as of the date first above mentioned.
SMITH BARNEY INC.
CHASE SECURITIES INC.
SALOMON BROTHERS INC
FURMAN SELZ
By: Smith Barney Inc.
By: /s/ John P. McGrath
----------------------------------
Name: John P. McGrath
Title:
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